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Why Gag Doctors in Detention Centres? What Are We Hiding?

25 June 2015 at 12:09 pm
Xavier Smerdon
The Border Force Act due to come into operation on July 1 includes secrecy provisions which have potentially very far-reaching consequences, writes barrister and human rights activist Julian Burnside.

Xavier Smerdon | 25 June 2015 at 12:09 pm


Why Gag Doctors in Detention Centres? What Are We Hiding?
25 June 2015 at 12:09 pm

The Border Force Act due to come into operation on July 1 includes secrecy provisions which have potentially very far-reaching consequences, writes barrister and human rights activist Julian Burnside.

On 20 May 2015, the Australian Parliament passed the Border Force Act. It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. The Act does not come into force until 1 July 2015, so until then no-one is bound by its restrictions.

Section 42 of the Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

“Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers. The service providers include IHMS as well as the companies which then operated the detention centres.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

In any event, an employee of Transfield or Wilson Security or IHMS is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

This represents a drastic gagging of Australians and others who work in the refugee detention system.  Presumably the government is aware that bad things are happening in Australia’s detention system, and it is keen to suppress any information about what goes on.  This is consistent with a long-standing ban on jouurnalists entering detention centres.  It is consistent with Nauru imposing an $8,000 application fee if a journalist wants to apply for a visa to go to Nauru: the fee is not refundable even if the visa is refused.

In short, Australia is doing everything it can to conceal its iniquitous mistreatment of asylum seekers.

What is happening in detention centres, both in Australia and offshore, is profoundly damaging to the health of people held there.  It takes about 12 month’s detention to drive people to hopelessness and despair. That is when they start suffering serious mental problems.  It is when they start harming themselves.  

And it is important to remember that boat people have NOT COMMITTED ANY OFFENCE by coming to Australia as they have.  They are NOT ILLEGAL.  They are NOT CRIMINALS.

It is no great surprise to learn that if you lock up an innocent person indefinitely, they will eventually break.  That is Australia’s dark secret: we are deliberately destroying people by detaining them indefinitely in shocking conditions.  And the government is anxious to ensure that information about what we are doing does not get out, because they know most Australians would be appalled if they knew the truth.

Every Federal MP who voted for the Border Force Act, and every Federal MP who supports the continued hard line on boat people deserves the contempt of the nation.

But there is still hope, despite the miserable quality of our Federal MPs.

The restriction on disclosure found in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a worker in a detention facility genuinely believed, on reasonable grounds, that facts he or she learned while employed by a service provider represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.  

If the Immigration Department did not share that view and prosecuted the person, the prosecution would provide a useful showcase in which all the details of all the inequities in our detention system would be exposed.  Bring it on!

About the author: Julian Burnside AO QC is an Australian barrister who practises principally in commercial litigation, trade practices and administrative law. He is also a human rights and refugee advocate, and author.

Xavier Smerdon  |  Journalist  |  @XavierSmerdon

Xavier Smerdon is a journalist specialising in the Not for Profit sector. He writes breaking and investigative news articles.

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